### No. 79-7 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

DWAYNE FISH and JOHN ALDIN HUBBARD, Defendants and Appellants.

Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade. Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellants: Morrison, Ettien and Barron, Havre, Montana Robert Morrison argued, Havre, Montana LawrenceA. Anderson argued, Public Defender,

Great Falls,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Mary B. 

### Troland argued, Assistant Attorney General,

Helena,Montana J. Fred Bourdeau CountyAttorney, Great Falls,Montana Tom McKittrick argued, Deputy County Attorney, Great

Falls,Montana

Submitted: November 11, 1980 Decided: 

## EEC

## 30 

## 19@ 

# TEc 4 

# ":q$' Filed: .<Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

### his 

### is an appeal from a conviction and judgment against the defendant Dwayne Morris Fish of attempted burglary and the defendant John Aldin Hubbard of mitigated deliberate homicide. The convictions followed a jury trial inthe DistrictCourt of the Eighth Judicial District, County of Cascade. Atapproximately 10:OO p.m. on the evening June 27, 1978, Dwayne Fish and Mary Skelton went toWally's Bar in Black Eagle, Montana, just north and across theMissouri River from Great Falls, Montana, where George Miller 

### was bartending. While inthe bar Fish talked with Miller concerning 

### a past-due money debt Miller owed him. After having

a drink, Fish and Skeltonbegan to leave. Atthat time,

some profanities were exchanged between Miller and Ms. Skelton. As a resultof the exchange, a fightensued between Fish and Miller with Miller seemingly getting the better of 

### it. After a brief 

### time, a patron of the bar grabbed Fish and pulled him away from Miller. The patron testified that, ashe separated the two men, Fish told Miller that he was going tokillhim. Fish leftthe bar with Skelton. After leavingWally's Bar Fish took Ms. Skelton home and mentioned thathe was going back to the bar to continue his fightwith Miller. Skelton suggested that she should call her brother, John Hubbard, for help, but Fish rejected the suggestion and told her to stay home. Skelton did call her brother, John Hubbard, and related what had happened between Fish and Miller. Hubbard agreed tohelp and subsequently 

### methis 

### sister atthe ~iverview Lounge inGreat Falls.In the meantime, Fish returned toWally's Bar. Fish parked his 

### car nearby and was approaching the bar when the

owner confronted him. Fish requested that the owner get 

### ~iller to come out, butMillerdeclined and Fish left. Skelton and Hubbard, aftermeeting, leftforWallyfs Bar to findFish. Upon arriving atWally's, they 

### were informed by the owner thatFish had come back but had left again. Skelton and Hubbard then went to the Grey Horse Bar and Saloon inBlack Eagle, where they found Fish. Hubbard advised Fish that

### it would not be 

### wise to return toWally's Bar tofightMiller because the bar 

### was fullof 

### Miller's friends. Fish stated that the fight

### was between him and Miller and for Hubbard to stay outof 

### it. A patron of the bar testified thathe heard Fish and Hubbard say they 

### were going togetMiller. Fearing thatFish would be infor quite 

### a beating if he returned toWally's Bar Skelton and Hubbard leftto find

some friends toeven up the odds. Skelton and Hubbard went to the LittleChicago Bar, inBlack Eagle, where they found DaleLodge, a close friend of John Hubbard. Skelton, Lodge and Hubbard went back to the Grey Horse where they found Fish sitting atthe bar. Skelton, Lodge and Hubbard began toplay pool while Fish continued to 

### sit 

### atthe bar. Atclosing 

### time, Skelton and Fish leftthe Grey Horse and headed towards Wally's Bar inFish's automobile. understanding that there would be a fightbetween Fish and Miller atWally's, Hubbard and Lodge followed. Upon arrival atWally's Bar, Hubbard parked his truck

across the 

### street from thebar. While Hubbard 

### was parked, Officer Dick Duncan of the Cascade County sheriff's office, approached Hubbard's truck. Deputy Duncan asked ~ubbard toidentifyhimself and advised Hubbard that there was going to be no trouble. As Hubbard and Lodge 

### were leaving the area of Wally's Bar, asrequested by Deputy Duncan, Skelton approached Hubbard's truck and asked Hubbard to

### meet her and Fish at Fischer's Trailer Park, where she expected Fish and Miller tofight. Millerwas a resident of the 

### trailer park. Skelton drove Fish's automobile toFischer's Trailer Park but discovered thatMiller had not yet arrived. Skelton and Fish parked their car adjacent toFischer's Trailer Park. Hubbard and Lodge arrived and parked next to Skelton and Fish. After twenty to fortyminutes of waiting atthe trailer park, Hubbard decided togo home for the night. Just ashe

was getting ready to leave, however, a 

### car which was believed tobe Miller's drove past. Fish and Skelton inone car, and Hubbard and Lodge in the other 

### car, proceeded to follow. The car spotted by the group actually contained Sally McCurdy, Miller's fiancee. She 

### was being followed to Miller's trailer by a friend, Garth Lenci. Fish, Hubbard, Lodge and Skelton 

### were unaware thatMiller and a friend of his, Steven Triplett, 

### were already inside the 

### trailer when McCurdy arrived. Upon arriving atMiller's trailer, Skelton parked the

car a shortdistance away. Fish got outof the 

### car and walked towhere Lenci 

### wasparked. SallyMcCurdy was already inthe trailer atthis 

### time. Immediately after her arrival Millerhad come to the trailer door and shouted to her to

come inside.Lenci testified that afterFish, Hubbard and Lodge walked up to his carFish told him "they

### were going to do it right and get

### itdone with." Lenci then testified he left

asallthree men approached Miller's trailer with Fish in the lead. Fish denies having made any such statement to Lenci and testified that Hubbard and Lodge did not arrive at Lenci's car until afterhe had started up the porch steps to Miller's trailer. When Fish arrived atMiller's front door he began knocking. McCurdy, who was inside the 

### trailer atthe time, testified to seeing Hubbard and Lodge a few feetbehind Fish. Triplett, who was also inside the trailer, stated he noticed an individual standing beside Fish butwas unable to identify the person. Fish, Hubbard and Skelton testified thatLodge and Hubbard had stopped just off 

### a concrete landing infront of Miller's trailer and 

### were not on the porch with Fish. As Fish was knocking on the door, the lights in the trailer went out. Fish said he continued toknock and shouted toMiller to "come outand get 

### it over with.

## " Sally McCurdy testified thatFish told Miller tocome outorhe would come in. Fish knocked on the door for approximately two minutes but testified he never attempted to force open the door, nor did he ever grab or handle the door knob inan attempt to open the door. During thisperiod of time Triplett, Millerand McCurdy

were in the trailer livingroom. Without saying anything Millerwent to his bedroom, obtained a rifle and returned to the kitchen to load it. Triplett testified thatMcCurdy then started yelling that they were going tohave a shoot-out and told himtoget inthe back bedroom. McCurdy however doesnot remember making any such statement. Triplett immediately left the livingroom and while on his way to the back door, heard Millerfirethe rifle. Atthe time the shotwas fired by Miller, Fish 

### testified that he had retreated and was standing about ten feet from the porch. He had heard the gun being cocked inside the 

### trailer, which frightened him. Atabout the 

### same time Fish testified thatLodge ran up on the porch and bumped against the door with his foot as the shot

### was fired by Miller. The prosecution presented the testimony of Skelton which indicated thatLodge was standing beside Fish when Lodge kicked the door two or three 

### times. The shot firedby Millerwent through the frontwindow adjacent to the trailer door and struck Lodge in the throat. Lodge's body was later found lying with his feet on the trailer door threshold. The door molding on the inside of the trailer and the door latchwere also found ripped from the door casing. Shrapnel (i.e., trailer metal) from the shotby Millerstruck Fish inthe stomach and Hubbard in the lipand eye. As the shotwas fired, Fish and Hubbard ran from the vicinity of Miller's trailer. Hubbard retreated to the area of 

### a tin shed adjacent to the trailer while Fish fled around the back side of the trailer and then headed towards his

car. Atthispoint, Miller 

### ---- came out of the trailer and fired 

### -- two more shots, aiming his r i f l e i n the direction of 

### -- - Hubbard. Hubbard then saw Millerrun around the opposite side of the trailer. Hubbard then returned to his truck and drove down to the immediate vicinity of the 

### trailer porch. As he reached the trailer, Miller appeared and shoved a riflethrough thewindow of the truck and threatened Hubbard's lifeby yelling he 

### was going to "blow his f

## ----- g head off." 

### A struggle for the rifle ensued, with Hubbard ultimately gaining possession. After taking the rifle away from Miller, Hubbard went

over toLodge's body and observed that he had been shot in the neck. Hubbard, then seeingMiller moving away, aimed and fired the rifle athim. Hubbard stated that when he fired atMiller he was aiming athisright leg expecting to wing him so as toprevent him from leaving to obtain another weapon. Fish, having witnessed the struggle over the rifle, testified thatHubbard missed Miller with the first shot and then fired athim again, Miller falling face down in the gravel. Hubbard testified thathe hitMillerwith the first shot and fired another into the ground to

### clear the chamber. A bullet from the rifle struck Millerin the small of the back atabout belt level. McCurdy, who had fled through the back of the trailer to gethelp, returned and went to the spotwhere Miller lay. While there, she testified, she heard Hubbard say, "He killed my friend so I killed him." She also testified to hearing Fish say, "Yes, 

### we killed him." A deputy sheriff who arrived on the scene shortly after the incident also testified thatHubbard told him that he shotMillerbecause Miller had shotLodge. Both Lodge and Miller died asa result of wounds 

### received that night. Fish and Hubbard were charged jointly by amended information with deliberatehomicide, attempted aggravated burglary and conspiracy tocommit aggravated assault. he conspiracy charge was dropped prior to 

### trial and the defendants pleaded not guilty to the remaining counts.Defendants filed 

### a motion todismiss the amended information which was denied by the DistrictCourt. Fish then filed a motion for separate trialwhich was alsodenied. 

###  rial by jury commenced on April 

### 4, 1979. On April 20, 1979, the jury returned a verdict of guilty against defendantFish for attempted burglary. He was acquitted of attempted aggravated burglary and deliberate homicide. The codefendant, Hubbard, was convicted of mitigated deliberate homicide and acquitted of attempted aggravated burglary and attempted burglary. Fish was sentenced toconfinement inthe Montana State Prison for a period of seven years and found tobe a nondangerous offender. Hubbard was sentenced toprison for a period of twenty years and also found tobe a nondangerous offender. Fish and Hubbard both appeal. Numerous issues have been raised by defendants on appeal, but thisCourt need only examine the following: 1. Whether defendant Fish's conviction for attempted burglary 

### is supported by substantial evidence? 2. Whether the trialcourtproperly excluded psychiatrictestimony offered by defendant Hubbard? To support an attemptedburglarycharge 

### it 

### is essential that the prosecution establish, with substantial and credible evidence, and beyond a reasonable doubt, that the defendant attempted to enter an occupied structure with the purpose to commit an offense therein. See sections 45-4-103 and 45-6-204, MCA. It 

### is a well-established principle that an attempt must consist of more than 

### merepreparation and that there must be

some overt actcommitted in furtherance of the offensecharged. Section 45-4-103(1), MCA; 

### see also State v. Ribera (1979) Mont. 

## , 597 P.2d 

## , 36 St.Rep. 1292; Statev. Rains (1917), 53 Mont. 424, 164 P. 540. The only evidence presented attrial indicates that Fish was on the frontporch of Miller's 

### trailer knocking or pounding on the door. Fish testified as he was knocking he toldMiller to come out and get 

### it over with. There was testimony of SallyMcCurdy, who 

### was inside the trailer at the 

### time, thatFish told Miller tocome out or he would come in; however, no evidence was ever presented that Fish attempted to force open the door or thathe ever grabbed or handled the door knob inan attempt toopen the door. Based upon a review of allof the evidence, ina light most favorable to the State, 

### we are clearly unable to find thatFish's conduct atany time constituted an overt act that could be construed as an attempt to enter

### Miller's trailer. Mere knocking orpounding on a door does not reach far enough towards the accomplishment of the alleged desired result to gain entry intoan occupied structure necessary to establish the crime of attempted burglary. The State argues that if the actions of Fish do not establish attempted burglary, Fish 

### is still guiltyof that crime on a theory of accountability for the actions of Dale Lodge. We againmust disagree. A person 

### is legally accountable for the conduct of another when :

I'(1)having a mental statedescribed by the statutedefining the offense, he causes another toperform the conduct, regardless of the legal capacity ormental stateof another person;"(3) either before orduring the commission of the offense with the purpose topromote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person inthe planning or commission of the offense." Section 45-2-302, MCA. The evidence presented 

### attrialupon which the State basis 

### its theory of accountability 

### is testimony that after Fish stopped knocking on the trailer door, Lodge ran up next toFish and may have kicked the door between one and three times before a shotwas fired by Miller striking Lodge. Fish testified that he had retreated from the porch altogether when Lodge ran up to the door, kicking it with his foot as the shot

### was fired. Additional evidence was presented that the molding around the trailer door and the door latch

### were found torn off the door casing and thatLodge's body 

### was found with his feeton the door threshold. However, it should be noted that no evidence 

### was ever presented that the door was damaged as a resultof any action by Lodge

orFish; infact, no evidence to support how the damage occurred was ever presented. Upon reviewing thisevidence, again ina lightmost favorable to the State, 

### we areunable to find that the prosecution has established those elements required to support a theory of legal accountability. There 

### isno substantial credible evidence thatFish had any intent to enter 

### Miller's trailer or thathe solicited or aided Lodge when Lodge ran up to the door and allegedly kicked it. In further support of the accountability theory, the Statedraws on the 

### timeFish, Hubbard and Lodge 

### were together earlier in the evening and on isolated remarks overheard from them, allegedly of anexceedingly violent nature and that 

### all three 

### were again present at

### Miller'strailerwhen Lodge approached the trailer door. Yet, the record 

### isbare of any evidence of any preparation by any of the three to carry out these alleged threats; no one was armed, not even with a stick ora rock. The record 

### ismore compatible with an intentby Fish toengage in

### a fistfight-- towhich he admits. The State admits in the record that no weapons 

### were found when the vehicles were searched. Miller

was the only person armed. 

### We acknowledge that there 

### was an

uncommon amount of activity that evening thatmade 

### itsway into the record, but we 

### are compelled to reject the conclusion reached from thisby the State. The jury alsorefused to accept the theory of accountability, as 

### is evidenced by the their inconsistent verdicts. They refused to find Hubbard accountable for actions of Fish

or Lodge by failing to find him guilty of attempted burglary. And, they failed to find accountability again by not finding Fish guiltyof mitigated deliberate homicide. The definition of criminal accountability contemplates

an active role infacilitating the commission of an offense. Consequently, more than mere presence 

### atthe scene of 

### a crime isnecessary toestablishcriminal responsibility. State ex 

### rel. Murphy v. McKinnon (1976), 171Mont. 120, 556 P.2d 906. The second issue on appeal deals with the 

### trial court's refusal to allow a psychiatrist to testify as to defendant Hubbard's mental state atthe 

### timeMillerwas shot. With respect toeither deliberatehomicide ormitigated deliberate homicide, the Statemust prove thatdefendant "purposely orknowingly" caused the death of another human being. Sections 45-5-102 and 45-5-103, MCA."~urposely orknowingly" are statutory descriptions of various 

### states of the human mind. See sections 45-2-lOl(52) and 45-2-101(27), MCA. They areparticular elements included in the definition of the criminal offenses 

### atissue. No element of an offense can be presumed, and, thus, the requisite 

### state of mind must be established by the prosecution and believed by the jury beyond a reasonable doubt. See Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; In

### re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. The prosecution must carry the burden of proving the requisite mental stateof the defendant in thisparticular offense. Therefore, due process demands that the defendant be allowed to introduce evidence to rebut said evidence. Evidence should be admissible toprove or disprove the existence or nonexistence of a defendant's stateof mind just 

### as any other evidence is admissible toprove other elements of the crime charged. The offered psychiatric testimony inthis instance included 

### a conclusion that Hubbard, under the surrounding 

### circumstances, more than likelydid not intend tokillMiller when he shot but only intended to stop and apprehend him. This testimony goes directly to the elements of "purposely

orknowingly" and, thus, should have been admitted. The Statepoints out thatdefendant failed to give notice to the prosecution thathe intended torely on the defense of lack of the particular stateof mind forming an element of the crime charged, asrequired by section 46-15- 301(2)(a), MCA. Weacknowledge defendant's failure but note that section 46-15-301(2)(a), MCA, 

### was amended in 1979, with theamendment taking effect afterdefendant's trial. Subsequent to this amendment, the section provided thatnotice 

### is only required if the defendant intends torely on the defense of mental disease or defect. See section 95-1803(3)(a),R.C.M.

The testimony inthis instance was not offered to support an affirmative defense of mental disease or defect but to support a general rebuttal to an allegation that defendant purposely and knowingly caused the death of another. This being the case, notice 

### isnot required. Respondent further argues that even if notice 

### isnot required, the subjectmatter of the testimony 

### isnot proper for opinion testimony by an expert. Rule 702, Mont.R.Evid., sets forth a two-prong test in determining the propriety of the use of expert testimony: (1)

### Is the subject

### matter such that it requires expert testimony; and (2) Is the particular witness qualified 

### as an expert to give an opinion in the particular area of his testimony? See Commission Comment, Rule 702, M0nt.R.Evi.d. In regard to the subject

### matter of the expert testimony, general guidelines for admission 

### were set forth in Leybold v. Fox Butte Theater Corporation (1936), 103Mont. 

# ".

. . When 

# .

# .. it can be said as a matter of law that the jurors areequally capable of forming an opinion or can draw, or be readily directed how to draw, a reasonable inference, then the matter isnot the subject of expert testimony. [Citations omitted.

### 1 In other words, when the conclusions tobe drawn from the facts stated arewithin the range of ordinary training, intelligence, and common observation, expert testimony 

### isnot admissible. 

# . ." 62 P.2d at226.

### See also Lamb v. Page (1969), 153Mont. 171, 455 P.2d 337; State v. Campbell (1965),146 Mont. 251, 405 P.2d 978. We are unable to find that identificationand description of a particular defendant's mental state, at a certain point in time, as effected by surrounding circumstances, clearly lies within the comprehension of laymen as based on common knowledge and expertise. With this being the case as to the determination of a defendant's state of mind at the time of alleged criminal conduct, expert testimony is proper. The subjectmatter of the testimony being proper for expert testimony, and there being no dispute as to the qualifications of the psychiatrist, the offered testimony

was improperly excluded from the jury. Furthermore, such a failure is prejudicial and, therefore, reversible error. To improperly exclude evidence and testimony offered by defendant as rebuttal to an essential element of the crime charged denies defendant a full evidentiary hearing and deprives him of his right to a fair trial. See Chambers v. Mississippi (1973),410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297; Jenkins v. McKeithen (1969), 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404,reh. denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123. The fact thatwe could reach a decision by treatment of

a single issue in defendant Hubbard's appeal has no particular significanceas to the validity of the remainder of the issues presented to this Court for reviewby Hubbard. It is the feeling of this Court that, in the event of another trial,matters that could not or in all probability would not again occur are better left alone,which serves the best interests of all concerned.

### The conviction and judgment against defendant Fish 

### is reversed and the cause dismissed. The conviction and judgment against defendant Hubbard 

### isreversed and the cause remanded to the District

### Court for

.I 

### a new trial.

Justice 

### d

We concur:

Chief Justice